Volume 16 | Issue 1
Article 2
2005
Ambiguity and Policy Making: a Cognitive
Approach to Synthesizing Chevron and Mead
Peter M. Shane
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Peter M. Shane, Ambiguity and Policy Making: a Cognitive Approach to Synthesizing Chevron and Mead, 16 Vill. Envtl. L.J. 19 (2005).
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Shane: Ambiguity and Policy Making: a Cognitive Approach to Synthesizing
AMBIGUITY AND POLICY MAKING: A COGNITIVE
APPROACH TO SYNTHESIZING CHEVRON
AND MEAD
PETER M. SHANE*
In the view of Professor Richard Pierce, the Supreme Court's
2
unanimous1 decision in Chevron v. Natural Resources Defense Council
marked "the abandonment of its traditional treatment of agency
constructions of agency administered statutes." 3 It was an abandonment that Professor Pierce applauded. 4 Eighteen years later, dissenting from an otherwise unanimous Court, Justice Scalia
announced that United States v. Mead 5 "has replaced the Chevron
doctrine," thus producing "an avulsive change in judicial review of
federal administrative action." 6 Justice Scalia was not applauding.
He presumably wrote "avulsive change," instead of "abandonment,"
because "avulsive" sounds violent and thus even scarier. In any
event, the responses of courts and scholars to both decisions con7
firm a clear verdict: Each case was and remains a very big deal.
* Joseph S. Platt - Porter, Wright, Morris & Arthur Professor of Law, Moritz
College of Law, The Ohio State University.
I am grateful to John Hyson for the invitation to participate in the Chevron
symposium, and to my fellow panelists, whose insights greatly enriched my understanding. Their failure to disabuse me of any errors that remain in this essay is
sincerely to be regretted.
1. The Court was unanimous, but truncated. Justices Marshall and Rehnquist
did not participate in the argument or decision of the case; Justice O'Connor recused herself from the decision.
2. 467 U.S. 837 (1984).
3. See generally KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., 1 ADMINISTRATIVE LAw TREATISE § 3.2 at 109 (3d ed. 1994) (noting creation of new two-step
test); accord RICHARD J. PIERCE, JR., SIDNEY A. SHAPIRO & PAUL R. VERKUIL, ADMINISTRATIVE LAW AND PROCESS 383-84 (4th ed. 2004).
4. DAVIS & PIERCE, supra note 3, at 112 (positing that Court's new treatment of
agency constructions of agency administered statutes under Chevron was preferable
to traditional review exercised prior to Chevron).
5. 533 U.S. 218 (2001).
6. See id. (Scalia, J., dissenting) (noting negative effect he believes holding will
have).
7. See, e.g., Kenneth A. Bamberger, ProvisionalPrecedent: ProtectingFlexibility In
Administrative Policymaking, 77 N.Y.U. L. REv. 1272, 1275 (positing that Mead increased judicial power that Chevron had diminished); Peter H. Schuck & E. Donald
Elliott, To the Chevron Station: An EmpiricalStudy of FederalAdministrative Law, 1990
DUKE LJ. 984 (offering empirical evidence of Chevron's impact on administrative
law).
(19)
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In this commentary, however, I would like to make three
points: The first is that, to the extent these cases are "big deals," it is
really not because of anything they actually decided. What they decided was consistent with the fabric of the law of judicial review of
administrative action as woven during earlier decades, which presumably explains why the Justices' votes were so lopsided. 8 The second is that the Court's rhetoric in both opinions is confusing and
unhelpful at key points, and, because confusing and unhelpful, perhaps creates impressions of substantial changes in the law when
none was being made. The third is that it would now be helpful to
agencies, judges and lawyers to focus less on what Chevron and Mead
say and more on what they decided, and to treat both decisions as
following what I will elaborate as a fairly straightforward set of propositions regarding the review of agency interpretations of law.
I.
CHEVRON AS A PARADIGM NON-SHIFT
Chevron, as is well known, focused on the scope of review to be
indulged by federal courts in reviewing agency interpretations of
the statutes they administer. 9 Scope-of-review doctrine, necessarily,
is an instrument for modulating the relationships among the law
and policy making bodies of our national government. As the
scope of judicial review widens or, to put it another way, as the intensity of judicial review becomes more stringent, the voices of
judges (and of lawyers within agencies whose job is to anticipate
judicial review) become more pronounced in the elaboration of administrative law. As the scope narrows, which is to say, as the intensity of review becomes more lenient, agency discretion expands,
and the power of courts and agency lawyers diminishes. 10 Thus, in
deciding the appropriate deference to afford agency interpretations of statutory law, the Court is inevitably making a statement
about where authority lies for resolving ambiguities in the texts that
Congress enacts.
8. See Chevron v. National Resource Defense Council,467 U.S. 837 (1984) (noting
6-0 decision); see also Mead, 533 U.S. at 218 (noting 8-1 decision).
9. Chevron, 467 U.S. at 842-45 (setting forth Chevron Two-Step standard of
review).
10. See generally Elana Kagan, PresidentialAdministration, 114 HARv. L. REv.
2245 (2001) (discussing agency discretion expansion). The expansion of agency
discretion also expands the potential authority of central policy makers within the
executive branch who oversee agency regulatory activity on behalf of the President.
Id.
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The ambiguity at issue in Chevron pertained to implementation
of the Clean Air Act Amendments of 1977.11 Those amendments
required certain states to establish permit programs, regulating
what the statute called "new or modified major stationary sources"
of air pollution. 12 The United States Environmental Protection
Agency (EPA), charged with issuing rules to govern the program
adoption process, promulgated a plant-wide definition of the statutory term "stationary source." 13 That is, a single stationary source
was taken to comprise "all of the pollutant-emitting activities which
belong to the same industrial grouping, are located on one or more
contiguous or adjacent properties, and are under the control of the
same person (or persons under common control) except the activities of any vessel."1 4 If only some subset of pollutant-emitting activity within such a grouping were modified, and if that modification
did not increase the overall pollution emitted from the plant as a
whole, then the modification would not require a permit. The purpose behind this approach was to permit polluters to make improvements within existing plants, even if, because they failed to
achieve that emission rate, they would not qualify for state permits
15
under the Clean Air Act Amendments.
Let us put off for a moment the Court's description of its
scope-of-review doctrine in Chevron and look only at what it actually
decided. The Court decided that EPA could adopt the plant-wide
interpretation of "stationary source" because Congress had not precluded that approach and because EPA's interpretation was "reasonable" in the specific sense of representing a rational policy
choice for implementing the Clean Air Act. 16 This holding was entirely consistent with the sizeable body of preexisting law mandating
judicial deference to agency policy choices. 17 The only thing unu11. See generally Chevron, 467 U.S. at 848 (describing Clean Air Act's implementation); see also Pub. L. No. 95-95, 91 Stat. 685 (1977) (implementing
amendments).
12. 42 U.S.C. § 7502(c) (5) (1990).
13. See 40 C.F.R pts. 51.18(j)(1)(i) and (ii) (1983) (emphasis added).
14. Id.
15. 42 U.S.C. § 7503 (a) (2) (stating that permit applicants who fail to achieve
lowest achievable emissions rate permits are ineligible for state permits under
CAA).
16. Chevron, 467 U.S. at 848-65 (giving findings and analysis of court).
17. "The court is first required to decide whether the [administrator] acted
within the scope of his authority... Section 706(2) (A) [further] requires a finding
that the actual choice made was not 'arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law."' 5 U.S.C. § 706(2) (A) (1964 ed., Supp.
V). To make this finding the court must consider whether the decision was based
on a consideration of the relevant factors and whether there has been a clear error
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sual about Chevron is that EPA's policy choice was necessarily embedded in its reading of a particular statutory provision. 18 Given
the structure of the statute, the question, "What is sound policy?"
became conflated with the question, "What do the words 'major stationary source,' in 42 U.S.C. § 7502 (b) (6), mean?"
That the core exercise at issue here was one of policy making
and not linguistic interpretation is perhaps most evident if one conducts a simple thought experiment. 19 Imagine that Congress explicitly provided in 42 U.S.C. § 7502(b) (6) that "major stationary
source" could be defined by EPA on a plant-wide or isolated basis,
as appropriate. In making that choice, EPA would, of course, still
have to be prepared to defend its policy against a subsequent
charge of being "arbitrary" or "capricious" under the Administrative Procedure Act.20 In anticipation of judicial review, EPA would
assemble certain evidence and arguments on behalf of its policy.
And, under well-established law, its evidence and arguments would
be reviewable, but only with deference. My suggestion, however, is
that the evidence and arguments EPA would adduce in my hypothetical case would turn out to be exactly the same evidence and
arguments offered in Chevron in support of its statutory interpretation. Moreover, the decision in Chevron that Congress had not legally precluded the plant-wide approach was tantamount to
situating EPA legally just exactly as I have hypothesized, giving it
discretion to adopt the plant-wide approach or not. Thus, the
Court acted consistently with prior law in realizing that the conflation of a policy question with an interpretive question should not
entitle the agency to less deference than it would otherwise enjoy.
There are points in Chevronwhere the Court seems to say fairly
clearly what I just said-that the exercise at issue was one of policy
making, not one of textual exegesis. As Justice Stevens states: "The
Administrator's interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference:
The regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the deciof judgment." Citizens for Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971)
(describing deferential standard of review).
18. See Chevron, 467 U.S. at 864-65 (citing Clean Air Act, 42 U.S.C. § 172(b) (6)
(2004); explaining how EPA's adoption of bubble concept arose from interpretation of § 172(b) (6); holding that EPA's policy choice to adopt "bubble" concept
was reasonable).
19. See generallyJERRY L. MAsArw, RICHARD A. MERRIL & PETER M. SHANE, ADMINISTRATrVE LAw: THE AMERICAN PUBLIC LAw SYSTEM 800, 802 (5th ed. 2003)
(stressing need to analyze Chevron in terms of policy versus linguistics).
20. 5 U.S.C. § 706(2)(A) (2004).
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sion involves reconciling conflicting policies." 2 1 Unfortunately, the
Stevens opinion prefaced its analysis of the Clean Air Act with a
statement of interpretive method for judges that took a fairly
straightforward proposition and made it seem more revolutionary.22 In a now all-but-ubiquitously cited passage, he wrote:
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has
directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. If, however, the
court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its
own construction on the statute, as would be necessary in
the absence of an administrative interpretation. Rather, if
the statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency's
answer is based on a permissible construction of the
23
statute.
What makes this language so startling is the seeming ease with
which administrators can now find themselves enjoying a level of
deference on questions of statutory interpretation that is as great as
the deference they enjoy on matters of policy. Read literally, what
is commonly called "Chevron Step One" requires a reviewing court
first to determine if Congress has spoken on "the precise question
at issue," has done so "directly," and has done so with enough specificity so that the resolution is not "ambiguous." 24 Only if the answer
is affirmative may the court decline to defer to the agency. 25 When-
ever the answer to Chevron Step One is negative-whenever Congress has addressed the general subject in question, but not the
precise issue, or has spoken only indirectly, or has left its command
ambiguous-then a court is to defer to the agency reading of the
law.26 Naively, one might thus regard Chevron as mandating defer21. See Chevron, 467 U.S. at 865 (deferring to agency interpretation under
Step Two).
22. See id. at 842-43 (setting forth procedure of analysis).
23. Id. (emphasis added).
24. Id. at 842 (setting forth Chevron Step One).
25. Id. at 842-45 (explaining that court may still defer to an agency when Congress has spoken to precise issue).
26. Chevron, 467 U.S. at 844-45 (setting forth Chevron Step Two).
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ence under every question of statutory interpretation ever likely to
arise in litigation.
But it is more sensible not to read Chevron this literally. The
categorical quality ofJustice Stevens' prose probably reflected more
than anything the intensity of his intended rebuke to the U.S.
Court of Appeals for the District of Columbia, which the Court has
occasionally thought a little too ready to impose its views of the law
on the agencies it reviews. 27 Under a more pragmatic reading of
Chevron, the first question facing a judge upon judicial review of a
question of statutory interpretation should not be whether Congress has spoken "directly" and without ambiguity to the precise
question at issue. The question should be whether, reviewing the
language in dispute, the judge finds herself believing that the statute is susceptible to only a single legally persuasive interpretation.
The judge may answer this question with recourse to all the usual
tools of statutory reading. 28 And, if the answer is affirmative, then
she must bind the agency to that interpretation. 2 9 If not, she
should move to Chevron Step Two.
Shifting the focus of Chevron Step One from an inquiry into
some inherent quality of the statutory text to the judicial understanding of that text may seem like taking liberties, but there is ample evidence that this is how Chevron is, in fact, implemented. The
Supreme Court has more than once bound an agency to a statutory
interpretation under Chevron Step One over a dissent that reaches
the opposite conclusion, also allegedly based on the clear meaning
of the statute.3 0 If both the majority and dissent were really asking
the question whether the text at issue was inherently ambiguous,
27. See, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council Inc., 435 U.S. 519 (1978) (denying lower courts authority to constrain agency decision making based on judicially crafted procedural requirements
that exceed mandates of applicable constitutional, statutory or regulatory provisions); Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 460
U.S. 1034 (1983) (setting aside, as unjustifiable interference with agency policy
making, D.C. Circuit invalidation of Nuclear Regulatory Commission regulations).
28. Accord, Immigration and Naturalization Service v. Cardoza-Fonseca, 480
U.S. 421, 446 (1987) (affirming appropriateness of using "traditional tools of statutory construction" in interpreting Immigration and Naturalization Act).
29. See Chevron, 467 U.S. at 842 (setting forth Chevron Step One).
30. See, e.g., General Dynamics Land Systems v. Cline, 540 U.S. 581, 582
(2004). The majority determined, contrary to the Equal Employment Opportunity
Commission (EEOC), that the Age Discrimination in Employment Act (ADEA)
does not prohibit discrimination against younger workers. See id. Interpreting the
ADEA as precluding the EEOC interpretation, the Court said:
"Even for an agency able to claim all the authority possible under Chevron, deference to its statutory interpretation is called for only when the
devices of judicial construction have been tried and found to yield no
clear sense of congressional intent. . . . Here, regular interpretive
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the very existence of the two contending positions would demand
an affirmative answer. What the disputing Justices are actually saying in these cases is that, read in the way that lawyers and judges
read statutes, there is only one reading of the statute that is persuasive as a matter of law. That is something about which judges may
sensibly disagree; whether or not a statute is unambiguous, as a
purely linguistic matter, usually is not.
II.
THE EXAGGERATED FERMENT OF MEAD
In addition to the disarray that the wording of Chevron Step
One made more or less inevitable, Chevron actually gave birth to a
less-noticed confusion-an uncertainty as to whether what Justice
Stevens called the "first" question under Chevron was itself actually
the second. In explaining the Court's rationale for deference, Justice Stevens wrote:
If Congress has explicitly left a gap for the agency to fill,
there is an express delegation of authority to the agency to
elucidate a specific provision of the statute by regulation.
Such legislative regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary
to the statute. Sometimes the legislative delegation to an
agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own
construction of a statutory provision for a reasonable in31
terpretation made by the administrator of an agency.
The apparent link between Chevron's approach to scope of review
and a theory of legislative delegation led some to question whether
the Chevron doctrine was applicable only where Congress had actually delegated authority to an agency, whether explicitly or implicmethod leaves no serious question, not even about purely textual ambiguity in the ADEA."
Id. at 583. In contrast, siding with the EEOC, Justice Thomas, dissenting for himself and Justice Kennedy wrote: "This should have been an easy case. The plain
language of 29 U.S.C. § 623(a) (1) mandates a particular outcome: that the respondents are able to sue for discrimination against them in favor of older workers." Id.
at 1249 (Thomas, J., dissenting). OnlyJustice Scalia, writing also in dissent, would
have reached the stage ofjudicial deference and upheld the agency on grounds of
reasonableness. Id. (Scalia, J., dissenting). To the same effect, see also Sullivan v.
Stroop, 496 U.S. 478, 479 (1990) (upholding, 5-4, administrative interpretation of
Aid to Families with Dependent Children Act, based on statute's unambiguous
meaning, in face of dissent that would overturn agency, also based on asserted
unambiguous, but opposite meaning of act).
31. See Chevron, 467 U.S. at 843-44.
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itly, to interpret the statute in question.3 2 If so, then an inquiry into
the presence of such a delegation would represent an antecedent
step before the so-called Chevron Step One.
33
I would have thought such a reading of Chevron was fanciful,
except, 17 years later, it was expressly adopted by the Supreme
Court in United States v. Mead. That case considered whether the
Customs Service acted permissibly in reclassifying the Mead Corporation's imported "'day planners,' three-ring binders with pages
having room for notes of daily schedules and phone numbers and
addresses, together with a calendar and suchlike" under the Harmonized Tariff Schedule of the United States (HTSUS). 34 That
statute provides that "[d]iaries, notebooks and address books,
bound; memorandum pads, letter pads and similar articles" are subject to tariff, while "other" items that might also be deemed
"[r] egisters, account books, notebooks, order books, receipt books,
letter pads, memorandum pads, diaries and similar articles" enter
free of duty. The Customs Service, after many years of placing day
planners within the "other" category, had changed its mind and interpreted the HTSUS as encompassing day planners within the
phrase, "[d]iaries, notebooks and address books, bound."3 5 This
ruling was set forth in one of the agency's so-called "ruling letters"
32. See Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO.
L.J. 833, 872 (2001). "[If Chevron rests on a presumption about congressional
intent, then Chevron should apply only where Congress would want Chevron to apply. In delineating the types of delegations of agency authority that trigger Chevron
deference, it is therefore important to determine whether a plausible case can be
made that Congress would want such a delegation to mean that agencies enjoy
primary interpretational authority." Id.
33. I would have doubted such a reading because Justice Stevens is explicit
that EPA was entitled to deference regardless of the circumstances that resulted in
the ambiguity of the Clean Air Act Amendments: "Congress intended to accommodate [the competing policy] interests, but did not do so itself on the level of specificity presented by these cases. Perhaps that body consciously desired the
Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in
a better position to do so; perhaps it simply did not consider the question at this
level; and perhaps Congress was unable to forge a coalition on either side of the
question, and those on each side decided to take their chances with the scheme
devised by the agency. For judicial purposes, it matters not which of these things
occurred." Chevron, 467 U.S. at 865. If Congress "did not consider the question at
this level," it would be odd to consider the resulting ambiguity a "delegation," except by pure judicial imputation.
34. See United States v. Mead, 533 U.S. 218, 219 (2001) (noting "day planners,
three-ring binders with pages having room for notes of daily schedules and phone
numbers and addresses, together with a calendar and suchlike, under the Harmonized Tariff Schedule of the United States (HTSUS)").
35. See id. at 224.
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through which the agency sets tariff classifications for particular
36
imports.
37
The eight-Justice majority in Mead declined to apply Chevron.
As construed in Mead, Chevron applies only in limited
circumstances:
It can . . . be apparent from the agency's generally conferred authority and other statutory circumstances that
Congress would expect the agency to be able to speak with
the force of law when it addresses ambiguity in the statute
or fills a space in the enacted law, even one about which
'Congress did not actually have an intent' as to a particular result. Wen circumstances implying such an expectation exist, a reviewing court has no business rejecting an agency's
exercise of its generally conferred authority to resolve a
particular statutory ambiguity simply because the agency's
chosen resolution seems unwise, but is obliged to accept
the agency's position if Congress has not previously spoken to the point at issue and the agency's interpretation is
38
reasonable.
Because the Mead Court discerned no congressional "expectation"
that the Customs Service would "be able to speak with the force of
law when it addresses ambiguity in the" HTSUS, it found Chevron
inapposite. It nonetheless found that the lower court erred in refusing to accord any deference at all to the Customs Service's ruling
on day timers.
The lower court's mistake, according to Mead, was its failure to
recognize that, even in cases falling outside the purview of Chevron,
agency interpretations of agency-administered statutes are still entitled to some deference. As the Court explained, "[a]n agency's
interpretation may merit some deference whatever its form, given
the 'specialized experience and broader investigations and information' available to the agency, and given the value of uniformity in its
administrative and judicial understandings of what a national law
requires."3 9 In other words, even if Congress did not delegate interpretive authority to an agency, there may still be reasons, all things
being equal, to prefer administrative readings of statutes to the preferred readings of judges. Based on these reasons, an agency inter36. See id. (discussing how agency sets tariff classifications for particular
imports).
37. See id. (declining to apply Chevron under Mead facts).
38. Id. at 229 (emphasis added).
39. Mead, 533 U.S. at 235.
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preting its statute, but outside the purview of a Chevron delegation,
is entitled to a kind of deference described by justice Jackson in his
opinion in Skidmore v. Swift & Co. 40 According to Justice Jackson:
"The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and
later pronouncements, and all those factors which give it power to
persuade, if lacking power to control."4 1 In other words, depending on the "totality of the circumstances," a judge should defer to
an agency reading if she is persuaded that it is worthy of
42
deference.
In recognition of the surface doctrinal complexity of all this,
one can be excused a long moment to let it all sink in. As in Chevron, the Court in Mead has expressed its rationale for a fairly
straightforward holding with head-scratch-worthy maladroitness.
First, again taking the Court literally, judges may be forgiven a little
puzzlement for wondering what it means to defer to a statutory in-
terpretation to the extent one finds it persuasive. If a proffered
4
reading is persuasive, then it requires no deference to adopt it. 3 If
I take your view of something because I think you are right, I am
not deferring to you; I am agreeing with you. Moreover, it is not
clear what the Court means when it says there are occasions when
"Congress would expect the agency to be able to speak with the
force of law" in implementing a statute. 44 That is to say, when Congress empowers an agency to compel public compliance with a statute, is it not always empowering the agency to "speak with the force
of law?" The Customs Service directive to Mead to pay duty on its
imported day timers was not merely hortatory.
Yet, once again, the Court's puzzling prose should not obscure
what seems to be an utterly straightforward result. In deciding
whether or not a day timer is a bound diary, the Customs Service
was not engaged in anything that we can recognize as actual policy
making. 45 The arguments it faced were as follows: On one hand,
day timers fit a common definition of diary, which "reflects com40. 323 U.S. 134 (1944).
41. See id. at 140.
42. Mead, 533 U.S. at 241 (Scalia, J., dissenting).
43. See id. at 228 (noting when agency is giving authority to interpret statute it
administers, any ensuing regulation is binding in court unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to statute).
44. See id. at 237.
45. See id. (asserting that Customs Service was not making policy by referring
to day timer as bound diary).
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mercial usage," and the three-ringer binder does, in fact, bind the
book together. 46 On the other hand, day timers contain "no space
for 'relatively extensive notations about events, observations, feelings, or thoughts' in the past," and, if ring-fastening counts as
"binding," it is hard to imagine what an "unbound" diary would
look like. 4 7 The terminology of the HTSUS does require the Customs Service to make a choice about this, but the competition of
values and potential impacts on society that are the hallmarks of a
genuine policy question hardly lurk here. 48 The agency is just trying to give the tariff schedule a plausible reading. 49 It makes sense
to say that the views of the agency, which does this kind of thing for
a living, ought not to be dismissed without due consideration. On
the other hand, this does not appear to be the kind of question that
would require, in the words of Chevron, "a reasonable accommodation of manifestly competing interests," through a decision that "involves reconciling conflicting policies. ' 50 On the contrary, the
agency determination at issue would seemingly come as close as
possible to a case of straightforwardly applying a policy determination that another body, Congress, has already made.
This is evident also in the procedure by which the Customs
Service announced its determination. Tariff classifications for particular imports are announced through so-called "ruling letters." 5 1
Ruling letters apply only to the specific items on which they rule
and to such other items as may be identical to them. 52 They are
issued without notice and comment and are not published, except
insofar as they must be made available for public inspection.5
3
Cus-
toms Headquarters and all port-of-entry Customs offices are equally
empowered to issue ruling letters, and they typically "contain little
or no reasoning, but simply describe goods and state the appropriate category and tariff."54 Of course, the relatively summary nature
of this process does not render the result necessarily arbitrary, and
a court should think twice before insisting that the agency did not
46. Id. at 225. (asserting that Customs Service was not making policy when
deciding whether day timer was bound diary).
47. Mead, 533 U.S. at 225-26.
48. Id. at 225 (explaining that deciding whether day timer is bound diary
hardly amounts to making policy).
49. Id. at 225-26 (explaining Customs Service's likely motive).
50. Chevron, 467 U.S. at 865.
51. See Mead, 533 U.S. at 218 (setting tariff classifications for particular
imports).
52. See id. (discussing breadth of ruling letters).
53. See id. (noting how ruling letters are promulgated).
54. Id. at 221-24.
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know a diary when it saw one. On the other hand, ajudicial conviction that the agency had confused a hawk with a handsaw would
hardly disturb the deployment of some nuanced policy judgment
essential to affecting a congressional regulatory scheme. Overturning a Customs HTSUS interpretation would not be unsettling the
kind of deliberate expert judgment, resting on a measured and exacting account of competing interests and contending positions,
that went into the agencyjudgment at issue in Chevron. That is why,
on the Mead facts, full Chevron deference would seem so misplaced.
III.
A
COGNrrIVE APPROACH TO CHEVRON AND MEAD
Abstracted from the unsurprising holdings of Chevron and
Mead, the two decisions seem to articulate two approaches to judicial deference in the face of agency statutory interpretation and two
corresponding rationales explaining why each mode of deference is
appropriate to its context. According to Mead, Chevron deference is
owed whenever "[i] t is apparent from the agency's generally conferred authority and other statutory circumstances that Congress
would expect the agency to be able to speak with the force of law
when it addresses ambiguity in the statute or fills a space in the
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enacted law."
In such a case, "[i] f... Congress has not directly addressed the
precise question at issue, [but] the statute is silent or ambiguous...
the question" is whether "the Administrator's view ... is a reasonable one." 56 On the other hand, Mead/Skidmore deference is appro-
priate, outside the Chevron context, whenever there is value to
acknowledging the "specialized experience and broader investigations and information" available to the agency and the importance
of uniformity in administrative and judicial understandings of what
a national law requires. 5 7 In those cases, " [t] he weight of [agency]
judgment . . .will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it
58
power to persuade, if lacking power to control."
All of this strikes me, however, as more complicated than is
necessary. Indeed, it may be easier for all concerned to look at the
judicial review of statutory interpretation not, as the Court seems to
say, in terms of qualities embodied in the statutes being inter55.
56.
57.
58.
Id. at 229.
Chevron, 467 U.S. at 843, 845.
Mead, 533 U.S. at 234.
Id. at 219 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
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preted, but instead from the cognitive position of the judge conducting a review of the agency reading. At the risk of simply
projecting my own mind-set, I hypothesize that judges, asked to
read statutes (in the first instance or on judicial review of agency
action), always form one of three conclusions upon conducting the
exercise. In one set of cases, judges form the conclusion-taking
into account the statutory text, Congress's evident purposes and all
other legally relevant interpretive material-that the statute is susceptible to only one legally plausible reading. That is, the statute
may be ambiguous to a linguist, but not to a lawyer. In such cases, it
does not matter whether one is drinking from Mead or breathing in
the fumes of Chevron. The Court's stance will, in both cases, be the
same: Did the agency adopt the only plausible reading of the statute? If so, uphold. If not, vacate and remand.
In a second set of cases, judges are likely to conclude that they
cannot tell what the statute means or, rather, that there are available a set of readings, each of which is plausible and none much
more plausible than the others, so that the judge really has no conviction as to the appropriate statutory interpretation. In this category, the choice between Mead and Chevron is also irrelevant.
Courts should defer in both cases to any reasonable agency reading
because agencies, not courts, are the institutions primarily tasked
with the implementation of administrative programs. If a court has
no conviction as to a statute's certain or even most appealing meaning, then it ought to defer to the agency not only for the reasons
adduced in Mead, but also out of respect for a foundational aspect
of the separation of powers-the priority of agencies over courts in
making administrative policy.
That brings us to the third set of cases, cases in which a judge
believes a statute is susceptible to multiple plausible readings, but
one of those readings seems to the judge to be most attractive or
compelling. It is in this category, and only in this category, that the
Chevron - Mead differentiation truly makes an actual difference. If
we are "at the Chevron station," to invoke the classic Schuck and
Elliott pun, 59 then, so long as the judge agrees the agency has
found a reasonable reading, she is duty-bound to defer to the
agency. 60 The fact that the judge thinks the agency would have
done better pursuing a different policy is not relevant. 6 1 If we're in
59. See Schuck and Elliot, supra note 7, at 984.
60. See Mead, 533 U.S. at 228 (noting when Chevron analysis applies).
61. See id. (noting that reviewing court has no business rejecting agency's exercise of its generally conferred authority to resolve particular statutory ambiguity
simply because agency's chosen resolution seems unwise).
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Mead territory, however, then the judge may insist on her preferred
reading. It becomes the judicial duty in such cases to say what the
law is. Understandably, before determining that a judicial reading
is truly the more attractive, Mead instructs the judge to attend conscientiously to everything the agency says in defense of its view and
to acknowledge whatever care was taken procedurally to insure a
thorough airing within the agency of all the competing possibilities
and counter-arguments. 6 2 Fair enough. After all, Justice Frankfurter once wisely spoke of the legislative specification of a standard
of review as chiefly expressing a "mood." A judge imbibing Mead
will still be sober, not heady with authority, but unpersuaded where
agency reasoning falls short. That's the Mead mood.
Of course, at this point, the obvious question is, when is Chevron the guiding standard and when Mead? On this point, the Mead
formulation is not optimal. Rather than ask, is it "apparent from
the agency's generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to
speak with the force of law when it addresses" the ambiguity in issue, I would ask whether it is "apparent from the agency's generally
conferred authority and other statutory circumstances" that the ambiguity in question signals an appropriate occasion for the agency
to fill the statutory hole by making policy. 63 I would ask, echoing
Chevron, whether, in interpreting the statute in question, the agency
was required to apply its expert judgment and public policy acumen in order to "accommodate... manifestly competing interests,"
and reconcile potentially conflicting values and goals. If that is
what is at stake, then courts should defer; if not, then not. This is
not because, in cases of genuine administrative policy making, administrators are anticipated lawmakers. Rather, it is because they
are hired to make policy. For example, the ambiguity in Chevron
regarding "stationary sources" was clearly an occasion for administrative policy making in just this sense. The ambiguity in Mead regarding types of stationery was not.
My suggested synthesis of the Court's leading cases on reviewing agency statutory interpretation would thus replace the Chevron
Two-Step with a more elaborate Chevron - Mead waltz. First, the reviewing judge should determine whether the statute in question is
susceptible to more than one plausible legal reading. If only one
62. See id. at 230 (explaining that reviewing judge must seriously consider
agency's reasoning before taking contrary view).
63. Id. at 229.
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plausible legal reading is available, the judge should bind the
agency to it.
If more than one plausible reading is available, the judge
should then ask whether the ambiguity in the statute signals an occasion for genuine agency policy making. In other words, the court
should determine whether the function of the agency, in filling the
statutory gap at issue, entails balancing expert judgment and relevant political values in order to accommodate the competing interests that need to be taken into account to further Congress's
objectives in enacting the statute. If so, then, so long as the agency
has rationally identified any plausible statutory reading, the judge
should consider herself duty-bound to defer to it.
If not, then the court must ask itself a third question: Of the
plausible readings available, does any appear to the court to be
plainly more attractive than its competitors? If not, then the court
should likewise defer to an agency choice of any rational interpretation because the agency is the primary policymaker, and the court
has no legal ground to prefer any alternative reading to the
agency's own. If, however, the court initially finds one plausible
reading most compelling, then it retains the authority to impose
that reading on the agency. Before doing so, however, the court
should pause, open-mindedly. It should consider, if the agency has
an alternative preference, whether the agency's reasoning is not in
fact sufficient to make its alternative at least as attractive as the
court's initial view. In such a case, notwithstanding that view, the
court should deem itself persuaded by the agency's statutory
reading.
Two objections to this approach may be readily anticipated.
The first is that, because my approach foregrounds the role of the
judge as reader, rather than congressional intention in framing a
disputed statute, my reformulation runs the risk of resuscitating the
judicial overstepping that provoked Justice Stevens's Chevron twostep rhetoric in the first place. The Supreme Court, were it to adopt
my prose, could meet this objection by appending the following:
"In reviewing agency interpretations of law, judges should think of
themselves as readers of last resort in a three-way collaboration.
Where Congress has manifested a legislative purpose, that purpose
controls court and agency. Where it has left room for policy making, the agency is the constitutionally appropriate policy maker."
The second is that my approach may seem to invite a less predictable course of implementation than does Chevron. That is,
judges may differ subjectively about when statutory ambiguity sigPublished by Villanova University Charles Widger School of Law Digital Repository, 2005
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nals moments for significant agency policy making in a way that
judges would not differ about when to apply Chevron Step One or
Step Two. My reply to that is three-fold. First, there is ample room
for subjectivity in the application of Chevron, as that decision's
64
checkered career in the Supreme Court amply demonstrates.
Second, even if lower courts were reasonably consistent about applying Chevron before 2001, the resurrection of Skidmore deference
via Mead is likely to induce the same lower court fluctuations in
statutory interpretation that have always been evident in the Supreme Court itself. But my third response is really the most important: conceding that my approach may be more conspicuous than
the Chevron formulation in inviting judges actually to exercise judgment, it at least invites judgment on the right thing, namely, the
proper scope for agency policy making in interpreting administrative statutes. I do not believe I am pointing judges towards any destination different from the direction of Chevron and Mead read
together. I am just being clearer about the nature of the journey.
In an area of doctrine now fraught with rhetorical confusion, some
new measure of clarity would be a virtue.
64.
DAvis AND PIERCE,
supra note 3, at 168-91.
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